Extracted from the PDF above. The PDF is authoritative.
2026:HHC:34177 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO
No.
: 428 of 2026 Decided on
: 13.08.2026 Kanti Bhushan …Petitioner Versus Kushal Singh …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Lal Singh Mehta, Advocate. For the respondent : Mr. Hitender Thakur, Advocate. Virender Singh, Judge (Oral) Petitioner Kanti Bhushan, has filed the present petition, under Article 227 of the Constitution of India, against the judgment dated 24.06.2026, passed by the Court of learned Additional District JudgeI, Mandi, District Mandi, H.P., (hereinafter referred to as the ‘First Appellate Court’), in Civil Misc. Appeal No.10 of 2025, titled as Kushal Singh versus Kanti Bhushan. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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2. By way of order dated 24.06.2026, the learned First Appellate Court has allowed the appeal preferred by respondent Kushal Singh, against the order dated 31.07.2025, passed by learned Civil Judge, Karsog, District Mandi (hereinafter referred to as ‘the trial Court’), in CMA No.24 of 2025, titled as Kanti Bhushan versus Kushal Chand and set aside the order passed by the learned trial Court.
3. For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
4.
Brief facts, leading to the filing of the present petition, as borne out from the record, may be summed up, as under:
4.1. Plaintiff Kanti Bhushan has filed the suit for declaration, confirmation of possession and permanent prohibitory and mandatory injunction, against the defendant, on the ground, that he is owner of land comprised in Khata/Khatauni No.240 min/320 min (Khata/Khatauni No.268/351 New) Khasra No.1358/363, measuring 000017 bighas having 7/17 share measuring 00007 bighas situated in
3 2026:HHC:34177 Muhal Karsog/416, Tehsil Karsog, District Mandi, H.P., along with existing shop consisting 13.12 square meter with overhead structure (hereinafter referred to as ‘suit land’). 4.2. It is the further case of the plaintiff that the defendant is stranger to the shop in dispute and trying to interfere in the possession of the plaintiff. 5. When put to notice, defendant has contested the suit, by denying the stand, as taken by the plaintiff, by filing the written statement. 6. Along with the plaint, the plaintiff has filed application, under Order 39 Rules 1 and 2 CPC, with a prayer to restrain the respondent from raising any sort of construction over the suit land. This application has also been contested on the similar grounds, upon which, the suit has been contested. 7. Learned trial Court, after hearing learned counsel for the parties and considering the three ingredients governing the grant/refusal of relief, under Order 39 Rules 1 and 2 CPC, has allowed the application, by directing the parties to
4 2026:HHC:34177 maintain status quo, qua the nature and possession over the suit land. 8. The said order has been assailed by defendant Kushal Singh, before the learned First Appellate Court. The learned First Appellate Court has allowed the said appeal and the order passed by the learned trial Court has been set aside. 9. Aggrieved from the said order, the present petition has been preferred before this Court. 10. The primary purpose of the Court, while deciding the application, under Order 39 Rules 1 and 2 CPC is to preserve the subject matter of the lis, until the rights of the parties are decided by the competent Court, after holding a full fledged trial. 11. It is a protective relief to maintain status quo, as it exists on the day of inception of the lis.
However, the said relief can be granted, on the ground, that the person seeking the relief, must plead and prove a prima facie case, balance of convenience and irreparable loss and injury. 12. Learned trial Court, in the present case, has considered the above ingredients and thereafter, passed the
5 2026:HHC:34177 status quo order, in order to preserve the subject matter of the lis. 13. A perusal of the order passed by the learned First Appellate Court does not demonstrate that the appeal has been allowed, on the ground, that the order passed by the learned trial Court suffers from perversity. 14. Instead, the learned First Appellate Court appears to have converted itself into the trial Court and considered the case of the parties afresh, without recording first the findings to the effect that the learned trial Court has exceeded its jurisdiction, while allowing the application, under Order 39 Rules 1 and 2 CPC. 15. Powers of learned First Appellate Court, under
Order 43 of the CPC, has elaborately been discussed, by the Hon’ble Supreme Court, in Civil Appeal No.13001 of 2024, Special Leave Petition (Civil) No. 252 of 2023, titled as Ramakant Ambalal Choksi Vs Harish Ambalal Choksi & Others, 2024 INSC 913. Relevant paragraphs 20 to 32 of the judgment, are reproduced, as under:
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20.
Order 43 of the CPC specifies the orders against which an appeal lies. Sub Rule (r) of Rule 1 of the said order provides that an appeal would lie against an order made under Rules 1, 2, 2A, 4 and 10 of Order 39 of the CPC respectively. 21. The law in relation to the scope of an appeal against grant or nongrant of interim injunction was laid down by this Court in Wander Ltd. v. Antox India P. Ltd. reported in 1990 Supp SCC
727. Antox brought an action of passing off against Wander with respect to the mark CalDe Ce. The trial court declined Antox’s plea for an interim injunction, however, on appeal the High Court reversed the findings of the trial judge. This Court, upon due consideration of the matter, took notice of two egregious errors said to have been committed by the High Court: a. First, as regards the scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order; and b. Secondly, the weakness in ratiocination as to the quality of Antox’s alleged user of the trademark on which the passing off action is founded. 22. With regards to (a), this Court held thus:
“In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions … the appellate court will not reassess the material and seek to reach a conclusion different from
7 2026:HHC:34177 the one reached by the court below … If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion.”
23.
This Court, while arriving at the above findings, relied on its earlier judgment in Printers (Mysore) v Pothan Joseph reported in (1960) SCC Online SC 62 where it was held thus:
“[...] as has been observed by Viscount Simon LC in Charles Osenton & Co v Johnston – the law as to reversal by a court of appeal of an order made by a judge below in the exercise of his/her discretion is well established, and any difficulty that arises is due only to the application of wellsettled principles in an individual case.”
24. It is pertinent to note that in Printers (supra) this Court had held that ignoring relevant
facts is also a ground for interfering with the discretion exercised by the trial court. Furthermore, Viscount Simon LC in Charles Osenton & Co v Johnston reported in 1942 A.C. 130, after stating the above, went on to quote Lord Wright’s decision in Evans v. Bartlam reported in 1937 A.C. 473:
“It is clear that the court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the court of appeal cannot review his order unless he is shown to have applied a wrong principle. The court must, if necessary, examine anew the
8 2026:HHC:34177 relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.”
25. In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial court, the appellate court is obliged to consider the case put forward by the appellant in favour of its argument that the trial court exercised its discretion arbitrarily or incorrectly in the circumstances. 26. What flows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate court, even while deciding an appeal against a discretionary order granting an interim injunction, has to: a. Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law; and b. In addition to the above, an appellate court may in a given case have to adjudicate on facts even in such discretionary orders. 27. The principles of law explained by this Court in Wander’s (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit. 28.
In Neon Laboratories Ltd. v. Medical Technologies Ltd. reported in (2016) 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless
9 2026:HHC:34177 such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court. 29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan reported in (2013) 9 SCC 221 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:
“20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view.
The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an
10 2026:HHC:34177 appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.” (Emphasis supplied)
30. This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd. reported in (2023) 1 SCC 634 observed that the hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. It further observed that if the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts. 31. This Court in Monsanto Technology LLC v. Nuziveedu Seeds Ltd. reported in (2019) 3 SCC 381, observed that the appellate court should not usurp the jurisdiction of the Single Judge to decide as to whether the tests of prima facie case, balance of convenience and irreparable injury are made out in the case or not. 32. The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of
11 2026:HHC:34177 this Court.
The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case. 16. As stated above, the learned First Appellate Court has allowed the appeal, without holding that the findings of the learned trial Court are suffering from perversity. The Hon’ble Supreme Court in Ramakant Ambalal Choksi’s case supra, has also discussed the meaning of the expression ‘perverse’. Relevant paragraphs 35 to 37 of the judgment, are reproduced, as under:
35. Any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough reported in (1878) 1 LR 1r 331, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey reported in 106 NW 814, the Court defined “perverse” as “turned the wrong way”; not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. 36. The expression "perverse" has been defined by various dictionaries in the following manner: a. Oxford Advanced Learner's Dictionary of Current English, 6th Ed. Perverse Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 12 2026:HHC:34177 b. Longman Dictionary of Contemporary English International Edition Perverse Deliberately departing from what is normal and reasonable. c. The New Oxford Dictionary of English 1998 Edition Perverse Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. d. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) Perverse Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. e. Stroud's Judicial Dictionary of Words & Phrases, 4th Ed. Perverse A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 37.
The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. (See: Damodar Lal v. Sohan Devi and others reported in (2016) 3 SCC 78)
17. If the facts and circumstances of the present case are seen in the light of the above decision of the Hon’ble Supreme Court, this Court is of the view that the learned First Appellate Court has not considered the case of the parties in
13 2026:HHC:34177 the proper perspective, as, in case, defendant is not restrained from raising construction, the very purpose of filing the suit would stand frustrated and plaintiff would suffer irreparable loss and injury, which cannot be compensated in terms of money. 18. The learned First Appellate Court ought not to have interfered with the order, passed by the learned trial Court, while adjudicating the application, under Order 39 Rules 1 and 2 CPC, until or unless, the learned Appellate Court has not come to the conclusion that the order passed by the learned trial Court suffers from perversity. 19. Considering all these facts, the order, passed by the learned First Appellate Court, does not stand in the judicial scrutiny, by this Court. Consequently, the present petition is allowed and the order dated 24.06.2026, passed by the learned First Appellate Court, is set aside, by restoring the
order dated 31.07.2025, passed by the learned trial Court.
20. Pending miscellaneous application(s), if any, shall also stand disposed of.
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21. Any of the observations made herein above shall not be taken as an expression of opinion on the merits of the case, as these observations are confined only to the disposal of the present petition. Record be sent back.
( Virender Singh ) August 13, 2026( ps ) Judge